Vol. 40, No. 1, Spring 2006
Family Boundaries: Symposium on Third-Party Rights and Obligations with Respect to Children
Joanna L. Grossman, Family Boundaries: Third-Party Rights and Obligations with Respect to Children, 40 FAM. L.Q. 1 (2006).
This article introduces the articles in this special issue of Family Law Quarterly on Family Boundaries: Symposium on Third-Party Rights and Obligations with Respect to Children. The author explores the rights afforded parents versus third-parties who function as caregivers but do not officially qualify to parents and the line-drawing problems: however one defines "parent," there will be caregivers who do not officially qualify, but who come close enough to raise difficult moral and policy questions. Also the choice to treat extended family (nonparental relatives) as having no greater rights or obligations that strangers, and stepparents as only having slightly greater rights and obligations than strangers. Also considered are the general consequences and considerations about institutions and procedural design. The author concludes that on the whole, there is no established "philosophy of family law" or even "philosophy of the family" and wonders if it is well past time to pursue that objective.
Brian Bix, Philosophy, Morality, and Parental Priority, 40 FAM. L.Q. 7 (2006).
This article explores the philosophical foundations that might either justify or challenge current legal rules granting priority to parents in decisions about custody, visitation, and other matters. The possible moral justifications for parental priority are complicated by questions regarding how to deal with people who fulfill parental roles but fall short of full parental status, and by the practical problems of institutional enforcement that arise with more contextual, less bright-line rules.
Deborah L. Forman, Same-Sex Partners: Strangers, Third Parties, or Parents? The Changing Legal Landscape and the Struggle for Parental Equality, 40 FAM. L.Q. 23 2006).
This article traces the dramatic evolution that has occurred in a number of states across the country regarding the status of same-sex partners who have chosen to create families through adoption, artificial insemination, or other reproductive technology. The author examines the variety of approaches to achieving parental equality and analyzes the different theories courts have used to categorize and accord rights to same-sex partners who are not biologically related to the children they raise.
Ronald K. Henry, The Innocent Third Party: Victims of Paternity Fraud, 40 FAM. L.Q. 51 (2006).
This article examines the range of situations in which paternity and child support obligations are established against nonfathers through fraud, error, or administrative inadequacies. It discusses the unintended consequences arising from welfare reform efforts to encourage paternity establishment through utilization of a family law court system in which hundreds of thousands of paternities annually are established by default judgments or against pro se defendants. The article examines abusive practices that lead to false paternity establishments and judicial doctrines that facilitate or impede correction of false establishments. The article concludes with recommendations for legislative, administrative, and judicial action to assure that children are correctly identified to their biological parents and that innocent third parties are not victimized by false or fraudulent paternity establishments.
Margaret M. Mahoney, Stepparents as Third Parties in Relation to Their Stepchildren, 40 FAM. L.Q. 81 (2006).
This article examines the rights and obligations of stepparents, who by virtue of marriage to a custodial parent share a home and develop a relationships with stepchildren but are not regarded as legal parents. The author examines whether any legal significance attaches to the stepparent-stepchild relationship. The author concludes that legal recognition and regulation of nonadoptive, residential stepparents has occurred on an issue-by-issue basis within the legislatures and courts of each state, resulting in an irregular pattern of regulation.
Naomi Cahn, State Representation of Children's Interests, 40 FAM. L.Q. 109 (2006).
The state’s claim that it can represent children's interests plays a significant role in defining the structure of families, the relationships within families, and the development of children’s interests. This article explores three different contexts involving the state and the contested nature of how the interests of minors are represented in both national and international law: first, in restricting the abortion rights of minors, the state claims to be protecting them; second, in allowing parents to decide who will act as caretaker for their children if both parents are dead, the state defers to parents’ wishes; and third, in dysfunctional countries, where the state cannot protect children and the exercise of rights in court is virtually meaningless, it is nongovernmental organizations who speak on behalf of minors.
In examining the state’s role in speaking for children, this article serves as a critique and a defense. The state’s actions and efficacy in advocating the interests of minors is context-dependent; there are contexts in which the state’s stated agenda of protecting children really is primary, while in other situations, there is another agenda altogether û or the state may be altogether incapable of acting at all. The paper argues that the state may be serving its own interest when it claims to be acting in a child’s best interest, as when it regulates minors’ abortions; it may be according primary value to children’s interests, as is the case with guardians appointed once both parents are dead; or the state may be completely unable to serve anyone’s interests. Children have different needs for third party understanding of their situations, depending on the posture of state, parent, and other institutional actors. Ultimately, the paradigmatic state/parent/child triangle must include, at a minimum, civil society and other nongovernmental actors.
John DeWitt Gregory, The Detritus of Troxel, 40 FAM. L.Q. 133 (2006).
This article addresses the aftermath of the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000) some six years after the decision. The Court in Troxel affirmed the Washington Supreme Court’s holding that the state statute, as applied, unconstitutionally infringed on “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” The author examines the facts and several opinions of the case as well as state statutes relating to grandparent visitation that were in effect long before the decision and ways in which state courts reacted to those statutes. The article examines the impact of Troxel on the law of grandparent visitation.
Publication Date: July 2006